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Chapter 1: the Title Examiner

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Chapter 1: the Title Examiner BOARD DRAFT REV FG (121-195-18) CHAPTER 1: THE TITLE EXAMINER 1.01 Purpose of Title Examination The purpose of an examination of title is to advise an examiner’s client whether title to real property is marketable. Based upon the materials examined, the title opinion should advise an examiner’s client of any irregularities, defects, and encumbrances appearing within the applicable period of examination that may reasonably be expected to affect the marketability of title, which may be stated as objections, comments or requirements. Additionally, the title opinion may advise the examiner’s client of the methods by which the client may secure marketable title. Comment: Title Standards are primarily intended to eliminate technical objections which do not impair marketability and some common objections which are based upon a misapplication of the law. The examining attorney (also referred to herein as the “examiner”), by way of a test, may ask after examining the title, what defects and irregularities have been discovered by the examination, and as to each such irregularity or defect, who, if anyone, can take advantage of it as against the purported*** owner, and to what end. Caution: In Mississippi, it is common for oil, gas and other mineral interest to be severed from the surface estate. If the mineral estate is being examined, then a full search (beginning with the original land patent coming forward to present) is required to determine who has record title to the mineral estate. Mineral estates should be treated as a separate chain of title. Unless expressly stated otherwise herein, these Standards do not generally apply to the examination of a mineral estate. Source: Lewis M. Simes & Clarence B. Taylor, Model Title Standards, Std. 2.1 (1960). History: Adopted effective as of AugustDRAFT 1, 2019. 1.02 Review by Examiner Based upon the intended scope of the examination, an examiner should review any documents, records, deeds, abstracts, affidavits, or other reliable materials that are necessary to form a legal opinion as to the status of title to the property. The indices that are examined should be set forth in the title opinion or as an exhibit to the opinion, and should include the following records, which should be searched back for at least the indicated*** time period, unless otherwise limited in the opinion: Source Minimum Search Period For residential, at least 32 years General and/or Sectional Index or Subdivision Index For non-residential, at least 50 years State Tax Lien Registry 7 years Construction Liens 1 year 1-1 BOARD DRAFT REV FG (121-195-18) Source Minimum Search Period Greater of 10 years or Period of Current Lis Pendens Ownership Federal Tax Liens 10 years Federal Civil Judgments (if maintained by chancery clerk) 20 years Circuit Court Judgment Roll 7.5 years Greater of 10 years or Period of Current Tax Sale Books (if tax sale is noted in index being searched) Ownership Ad Valorem Taxes 3 years Solid Waste or other Municipal Liens (if maintained by chancery 7.5 years clerk) Comment: Occasionally, an examiner may limit the examination to instruments in the chain*** of title that were recorded after the period covered by a prior title opinion that was submitted by the client and prepared by another attorney; in this instance, the examiner is well advised to make certain that the client understands that the client assumes the risk of any deficiencies in the prior opinion. The documents that are available for examination may vary, but they should be sufficient for an examiner to be legally satisfied as to the status of title to the property. Disclosure of the documents examined is necessary to advise the client of the basis for the opinion and to protect an examiner from documents and matters not considered. The examining attorney is usually not responsible for identifying or gathering the documents to be examined but should assess the acceptability of the methods employed in doing so and should disclose any instance in which the methods employed are not generally considered to be the most reliable. The scope of an examiner’s opinion may be limited. In an effort to control cost, it has become common practice for examinations to be limited to a search of the sectional index regardless whether the land is described by lot and block or metes and bounds. Under such circumstances, an examiner should carefully set forth the limited scope of the opinion. The chancery clerk is required to maintain three general indices: one for deeds, one for deeds of trust and mortgages, and one for general substitutions of trustees. Miss. Code Ann. §§ 89-5-33(1), 89-5-29, 89-5-45. The chancery clerk is also requiredDRAFT to maintain a sectional index to instruments describing land which are also entered in a general index. Miss. Code Ann. § 89-5-33(2). All notices of state tax liens on real property and personal property, tangible and intangible, must be enrolled in the Mississippi Department of Revenue’s Tax Lien Registry. Miss. Code Ann. § 85-11-1 et. seq. All notices of federal liens on real property must be filed in the chancery clerk’s office in the county where the real property*** is located. Miss. Code Ann. § 85-8-5. The chancery clerk is required to maintain a certified duplicate of each map or plat made of any city, town, or village, or addition thereto. Miss. Code Ann. §§ 19-27-21 to 27. Each chancery clerk is required to maintain, as a part of the land records of their county, a record entitled “Notice of Liens” wherein notices shall be filed and recorded. Miss. Code Ann. § 85-7-131 (oil and gas well construction); Miss. Code Ann. § 85-7-133; Miss. Code Ann § 85-7-401 (special [construction] liens on real estate); Miss. Code Ann § 85-7-405. 1-2 BOARD DRAFT REV FG (121-195-18) Although financing statements are generally filed in the Office of the Secretary of State, to perfect a security interest or agricultural lien in (i) as-extracted collateral or timber to be cut, or (ii) collateral that is or is to become a fixture, the financing statement must be filed of record in the chancery clerk’s office. Miss. Code Ann. § 75-9-301 et seq. A judgment constitutes a lien upon and binds all of a defendant’s property once that judgment is enrolled. Miss. Code Ann. §§ 11-7-191, 11-7-197. The circuit clerk must enroll judgments within 20 days after the end of each term of the circuit court. Miss. Code Ann. § 11-7-189. Although the tax collector is required to deliver a book of duplicate tax receipts for each prior year— which remains as a permanent record in the chancery clerk’s office—the current year’s receipts are maintained in the tax collector’s office. Miss. Code Ann. § 27-41-43. Therefore, taxes and special assessments for the current year must be examined in the tax collector’s office. Caution: While an examiner may limit their scope of examination of the official land records to the sectional index, the examiner should be aware that in the event of conflict between the general and the sectional indices, the notice imparted by the general index will prevail except to the extent the land is described by lot number for platted subdivisions, official surveys and unofficial subdivisions and surveys*** commonly in use, in which case the sectional index will prevail. Alamac LLC v. Travelers Bank & Trust, FSB, 941 So. 2d 219 (Miss. App. 2006). This exemplifies why it is important for examiners to expressly set forth in their title opinion or as an exhibit to the opinion which indices were examined and the periods of examination (e.g., my examination of the official public records was limited to the following indices for the periods shown). The chancery clerk is required to maintain a general index of all chancery court causes and probate court causes which have been finally disposed of in the courts of the county. Miss. Code Ann. § 19-15-7. While the chancery index is not part of the official land records, a search of the chancery index may reveal matters involving incompetency, probate, minors, divorce, and eminent domain. If a gap in the chain of title occurs (i.e., an apparent missing conveyance or interest), then the chancery index should be searched in an effort to bridge the gap. If an estate proceeding is referenced in the chancery index, but a copy of the will is not included in the estate proceeding, then the will book maintained by the chancery clerk should be searched in an effort to find the will. Miss. Code Ann. § 9-5-137. The filing of a bankruptcy petition stays the execution of a judgment lien and tolls the running of the seven-year statute of limitations applicable to the judgment lien. Trustmark Nat. Bank v. Pike County Nat. Bank, 716 So.2d 618 (Miss. 1998). The time between the filing of the bankruptcy petition and the end of the bankruptcy proceedings is not to beDRAFT counted as part of the seven-year period in Miss. Code Ann. § 15-1- 47. Id. Therefore, if the chain of title reveals a judgment lien and the examiner becomes aware of a bankruptcy filing since the date the judgment lien was filed but prior to the judgment lien becoming barred of record, then an investigation should be made to determine the whether the seven-year statute of limitations applicable to the judgment lien was tolled. Source: *** Citations in the Comment and Caution; Title Standards Board.
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